“4BAge verification policy

(b)fails to operate an age verification policy in respect of premises at which the person carries on the tobacco or nicotine vapour product business.

(2)Subsection (1) does not apply to premises (“the business premises”) from which—

(a)tobacco products, cigarette papers or nicotine vapour products are, in pursuance of a sale, despatched for delivery to different premises, and

(b)no other tobacco or nicotine vapour product business is carried on from the business premises.

(3)An “age verification policy” is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers or a nicotine vapour product on the premises (the “customer”) if it appears to the person selling the tobacco product, cigarette papers or nicotine vapour product that the customer may be under the age of 25 (or such older age as may be specified in the policy).

(4)The Scottish Ministers may by regulations amend the age specified in subsection (3).

4Sale by persons under 18

“4CSale of tobacco or nicotine vapour products by persons under 18

(1)A responsible person who allows a tobacco product, cigarette papers or a nicotine vapour product to be sold by a person under the age of 18 commits an offence.

(2)For the purposes of subsection (1), “responsible person” means—

(a)where the sale is at premises which are noted in a registered person’s entry in the Register, the registered person for those premises,

(b)where the sale is at premises which are not noted in a registered person’s entry in the Register—

(i)any employer of the person who made the sale, and

(ii)any other person having management or control of those premises.

(3)Subsection (1) does not apply to a sale which—

(a)is made at premises which are noted in a registered person’s entry in the Register, and

(b)is authorised by the registered person for those premises.

(4)Each authorisation mentioned in subsection (3)(b) must be recorded and kept at the premises at which a sale by a person under the age of 18 is made.

(5)The Scottish Ministers may prescribe—

(a)the form and content of authorisations made under subsection (3)(b),

(b)the method of recording authorisations for the purposes of subsection (4).

(6)An authorisation is, for the purposes of subsection (3)(b), deemed not to have been made, if—

(a)it is not recorded and kept in accordance with subsection (4), or

(b)it is not made in accordance with any provision made under subsection (5).

(7)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 1 on the standard scale.”.

5Defence of due diligence for certain offences

After section 4C of the 2010 Act (inserted by section 4) insert—

“4DDefence of due diligence for certain offences

(1)It is a defence for a person charged with an offence to which this section applies to prove that the person (or any employee or agent of the person) took all reasonable precautions and exercised all due diligence to prevent the offence being committed.

(2)This section applies to an offence under any of the following provisions of this Act—

(a)section 4(1),

(b)section 4A(1),

(c)section 4C(1).”.

6Purchase of nicotine vapour products on behalf of persons under 18

After section 6 of the 2010 Act insert—

“6APurchase of nicotine vapour products on behalf of persons under 18

(1)A person aged 18 or over who knowingly buys or attempts to buy a nicotine vapour product on behalf of a person under the age of 18 commits an offence.

(2)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”.

7Extension of vending machine prohibition

(1)The Scottish Ministers may by regulations amend the definition of “vending machine” in section 9(3) of the 2010 Act (prohibition of vending machines) so as to include automatic machines for the sale of nicotine vapour products.

(2)In subsection (1), “nicotine vapour products” has the meaning given in section 35A of the 2010 Act.

(ii)in paragraph (a), for “the person has been the subject of” substitute “there have been”, and

(iii)in paragraph (d), the word “further” is repealed,

(d)in subsection (4)—

(i)for “person is the subject of a relevant enforcement action if the person”, substitute “relevant enforcement action occurs where a person mentioned in subsection (4A)”,

(ii)the word “or” immediately following paragraph (a) is repealed,

(iii)after paragraph (b), insert “, or

(c)convicted of an offence under section 92(1)(b) or (c) of the Trade Marks Act 1994 (unauthorised use of trade mark in relation to goods) in circumstances where the goods in question are, or include, tobacco products, smoking related products or nicotine vapour products.”,

11Offences relating to the Register

(b)in subsection (2), after “Register” insert “as premises at which the person carries on a tobacco business (or both a tobacco business and a nicotine vapour product business)”,

(c)after subsection (2) insert—

“(2A)A registered person who carries on a nicotine vapour product business at premises other than those noted in the person’s entry in the Register as premises at which the person carries on a nicotine vapour product business (or both a tobacco business and a nicotine vapour product business) commits an offence.”,

12Public inspection of the Register

In section 21(1) of the 2010 Act (public inspection of the Register), for “at which tobacco businesses are carried on or proposed to be carried on” substitute “, specifying for each of those premises whether there is carried on, or there is proposed to be carried on—

(a)a tobacco business,

(b)a nicotine vapour product business, or

(c)both a tobacco business and a nicotine vapour product business”.

The 2010 Act: miscellaneous

13Power to exclude certain premises

In section 35(1) of the 2010 Act (interpretation), in the definition of “premises”, for “, vessel, or moveable structure” substitute “or moveable structure (and, for this purpose, “vehicle” includes any aircraft or ship, boat or other water-going vessel, other than one of a prescribed description)”.

14Presumption as to contents of container

In section 33(1) of the 2010 Act (presumption as to contents of container), for “5 or 6” substitute “4A, 4B, 4C, 5, 6, 6A or 9”.

15Part 1 of the 2010 Act: miscellaneous

(1)The title of Chapter 1 of Part 1 of the 2010 Act becomes “Display, sale and purchase”.

(2)The title of section 10 of the 2010 Act becomes “Register of tobacco and nicotine vapour product retailers”.

16Meaning of “the 2010 Act”

CHAPTER 2Advertising and promotion of nicotine vapour products

17Advertising and brandsharing

(1)The Scottish Ministers may by regulations make provision prohibiting or restricting an activity, in the course of a business, which relates to—

(a)a nicotine vapour product advert,

(b)nicotine vapour product brandsharing.

(2)Regulations under subsection (1) may in particular—

(a)make provision for offences and penalties for a person who contravenes a prohibition or restriction on an activity mentioned in subsection (1),

(b)provide for exceptions to the offences,

(c)provide for defences to the offences,

(d)impose on a person a duty to enforce the provisions in the regulations and, in relation to such a duty, apply with modifications, or make provision equivalent to, sections 25 and 26 of Chapter 3 of the 2010 Act,

(e)provide powers to a person whose duty it is to enforce the provisions and, in relation to such powers, apply with modifications, or make provision equivalent to, sections 28 to 32 of Chapter 3 of the 2010 Act.

(3)The maximum penalties that may be provided for in regulations under subsection (1) for a person who commits an offence under those regulations are—

(a)on summary conviction, imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both,

(b)on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine or both.

(4)In this section—

“nicotine vapour product” has the meaning given in section 35A of the 2010 Act,

“nicotine vapour product advert” means a published advertisement or a display whose purpose or effect is to promote a nicotine vapour product,

“nicotine vapour product brandsharing” means the use of any name, emblem or other feature where—

(a)

the name, emblem or other feature is used in connection with—

(i)

any service or product (other than a nicotine vapour product) and the name, emblem or other feature used is the same as, or similar to, a name, emblem or other feature connected with a nicotine vapour product, or

(ii)

any nicotine vapour product and the name, emblem or other feature used is the same as, or similar to, a name, emblem or other feature connected with any service or product other than a nicotine vapour product, and

(b)

the purpose or effect of the use is to promote a nicotine vapour product,

“public” means the public at large, or any section of the public or individually selected members of the public,

“published” means published, distributed or otherwise made available to the public, in any form and by any means.

18Free distribution and nominal pricing

(1)The Scottish Ministers may by regulations make provision prohibiting or restricting, in the course of a business—

(a)giving away to the public any product or coupon (separately or with something else), where the purpose or effect is to promote a nicotine vapour product,

(b)making products or coupons available to the public (separately or with something else) for a nominal sum, where the purpose or effect is to promote a nicotine vapour product.

(2)Regulations under subsection (1) may in particular—

(a)make provision for offences and penalties for a person who contravenes a prohibition or restriction mentioned in subsection (1),

(b)make further provision about the circumstances in which a product or coupon is to be treated as being made available for a nominal sum,

(c)provide for exceptions to the offences mentioned in paragraph (a),

(d)provide for defences to the offences,

(e)impose on a person a duty to enforce the provisions in the regulations and, in relation to such a duty, apply with modifications, or make provision equivalent to, sections 25 and 26 of the 2010 Act,

(f)provide powers to a person whose duty it is to enforce the provisions and, in relation to such powers, apply with modifications, or make provision equivalent to, sections 28 to 32 of the 2010 Act.

(3)The maximum penalties that may be provided for in regulations under subsection (1) for a person who commits an offence under those regulations are—

(a)on summary conviction, imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both,

(b)on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine or both.

(4)In this section—

“coupon” means a document or other thing which, by itself or not, can be redeemed for a product or service or for cash or for any other benefit,

“nicotine vapour product” has the meaning given in section 35A of the 2010 Act,

“public” means the public at large, or any section of the public or individually selected members of the public.

19Sponsorship

(1)The Scottish Ministers may by regulations make provision prohibiting or restricting the entering into, in the course of a business, of a sponsorship agreement, where the purpose or effect of anything done as a result of the agreement is to promote a nicotine vapour product.

(2)Regulations under subsection (1) may in particular—

(a)make provision for offences and penalties for a person who contravenes a prohibition or restriction mentioned in subsection (1),

(b)provide for exceptions to the offences,

(c)provide for defences to the offences,

(d)impose on a person a duty to enforce the provisions in the regulations and, in relation to such a duty, apply with modifications, or make provision equivalent to, sections 25 and 26 of the 2010 Act,

(e)provide powers to a person whose duty it is to enforce the provisions and, in relation to such powers, apply with modifications, or make provision equivalent to, sections 28 to 32 of the 2010 Act.

(3)The maximum penalties that may be provided for in regulations under subsection (1) for a person who commits an offence under those regulations are—

(a)on summary conviction, imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both,

(b)on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine or both.

(4)In this section—

“nicotine vapour product” has the meaning given in section 35A of the 2010 Act,

“sponsorship agreement” means an agreement under which a party to it makes a contribution towards something, whether the contribution is in money or takes any other form (for example, the provision of services or of contributions in kind).

CHAPTER 3Smoking outside hospitals

20Smoking outside hospitals

(1)The Smoking, Health and Social Care (Scotland) Act 2005 is modified as follows.

(2)After section 4 insert—

“4AOffence of permitting others to smoke outside hospital building

(1)A person who, having the management and control of the no-smoking area outside a hospital building, knowingly permits another to smoke there commits an offence.

(2)A person accused of an offence under this section is to be regarded as having knowingly permitted another to smoke in the no-smoking area outside a hospital building if that person ought to have known that the other person was smoking there.

(3)It is a defence for an accused charged with an offence under this section to prove—

(a)that the accused (or any employee or agent of the accused) took all reasonable precautions and exercised all due diligence not to commit the offence, or

(b)that there were no lawful and reasonably practicable means by which the accused could prevent the other person from smoking in the no-smoking area outside a hospital building.

(4)A person who commits an offence under this section is liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

4BOffence of smoking outside hospital building

(1)A person who smokes within the no-smoking area outside a hospital building commits an offence.

(2)It is a defence for an accused charged with an offence under this section to prove that the accused did not know, and could not reasonably be expected to have known, that the place in which it is alleged the accused was smoking was within the no-smoking area outside a hospital building.

(3)A person who commits an offence under this section is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

4CDisplay of warning notices in hospital buildings and on hospital grounds

(1)The Health Board for the area in which a hospital is situated must conspicuously display no-smoking notices at every entrance to the hospital grounds.

(2)The person having the management and control of a hospital building must conspicuously display no-smoking notices at every entrance to the building.

(3)A no-smoking notice is a notice stating that it is an offence to smoke in the no-smoking area outside a hospital building or knowingly to permit smoking there.

(4)The Scottish Ministers may by regulations make further provision as to the manner of display, form and content of no-smoking notices.

(5)A person who fails to display no-smoking notices in accordance with subsection (2) (and regulations made under subsection (4) insofar as they relate to the duty under subsection (2)) commits an offence.

(6)A person who commits an offence under subsection (5) is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

4DMeaning of “no-smoking area outside a hospital building” and related expressions

(1)For the purposes of this Part, the “no-smoking area outside a hospital building” is the area—

(a)lying immediately outside the hospital building, and

(b)bounded by a perimeter the specified distance from the building,

but only insofar as the area forms part of hospital grounds.

(2)The Scottish Ministers may by regulations—

(a)specify the distance for the purposes of subsection (1)(b),

(b)make further provision about determining the perimeter around a building for the purposes of that subsection.

(3)In this Part—

“hospital” means a health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978),

“hospital building” means a building situated on hospital grounds,

“hospital grounds”, in relation to a hospital, means land in the vicinity of the hospital and associated with it.

(4)The Scottish Ministers may by regulations—

(a)provide that hospitals of a specified description are not hospitals for the purposes of this Part,

(b)provide that land of a specified description is or is not to be considered “hospital grounds” and otherwise make further provision to elaborate the meaning of “hospital grounds” for the purposes of this Part,

(c)provide that buildings of a specified description are not hospital buildings for the purposes of this Part,

(d)provide that land of a specified description does not form part of the no-smoking area outside a hospital building for the purposes of this Part.

(5)Regulations under subsection (4) may modify the application of section 4C as the Scottish Ministers consider appropriate.”.